Feds give some human smugglers second chance

San Diego  For the past two years, a groundbreaking program in San Diego’s federal court has tried a different approach to one of the border’s most common crimes — human smuggling.

Under the program, small-time, nonviolent smugglers who are caught smuggling one or two people into the U.S. are given the option of entering a diversion program, after first pleading guilty to a felony charge of human smuggling.

At that point, the guilty plea is set aside, and instead of being shipped off to prison, eligible defendants are placed in the diversion program. It lasts at least a year and includes a requirement for counseling, employment and education.

During that time, they are monitored closely by the Pretrial Services unit of the court, prosecutors with the U.S. Attorney’s Office and the federal court.

They appear in court every other week to have their progress assessed. Participants are put into drug treatment, counseling programs or mental health programs, depending on what is needed.

They are also required to get a job and earn either a high school degree or a GED, if they don’t have one.

If after a year they have not been arrested again and have complied with all of the terms of the program, they graduate.

The felony charge is dismissed, and the case never appears on their record.

Those who fail get hammered. They are prosecuted for the original case and any other new crimes, and go to prison.

Begun in November 2010, the program so far appears to be working. Of the 227 participants, 212 have graduated — a success rate of 93 percent, according to the U.S. Attorney’s Office.

That has saved an estimated $4 million in court costs and the costs that would have occurred if the defendants had been jailed, the office says.

The program is a joint effort among the U.S. Attorney’s Office, the court and a local defense lawyer who handles the cases. Eligibility for the diversion program is determined by prosecutors, who review arrests to decide if defendants are potential candidates.

All the participants must be U.S. citizens. Generally, the participants were arrested trying to smuggle a small number of immigrants and are not involved with an organized smuggling gang, said Assistant U.S. Attorney Michael Wheat.

Other factors include whether the smuggled immigrants were being hidden in a secret compartment in the vehicle, or if the defendant tried to flee and ended up in a high-speed chase.

“We’re looking for those cases that are not aggravated, or heinous, or where there was some danger involved,” Wheat said.

Diverting some defendants into the program means not spending money on incarceration and means law enforcement can devote more resources to large-scale smuggling rings, he said.

Nancee ﻿Schwartz, the defense lawyer who represents the defendants, said some are people who smuggled once and were caught, and did so because they needed the money. The other group are people with drug or other problems that can be addressed through the counseling and other services in the diversion program.

“They have to participate in mental health counseling or drug programs. Sometimes they are told they have to stay away from family members who are a bad influence,” Schwartz said.

Some fail, either by committing a new crime, not complying with terms of the program or other reasons. When they do, their guilty pleas go into effect and they are sentenced.

But those who make it get a rare chance to wipe out a felony on their record, which can affect the ability to get a job, vote and do other things. Unlike the state court system, which allows people to expunge felonies from their record under certain circumstances, there is no similar process in federal courts, Schwartz said.

U.S. Attorney Laura Duffy, under whose tenure the program was launched, said in a news release that the diversion program has shown it can work.

“This program gets these defendants on the right path by compelling them to pursue education and employment without further contact with law enforcement,” she said.